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ELCDismissedNot stated in judgment (application dated 14th October, 2021)· [2022] KEELC 3033 (KLR)

Kamau v Nyokabi & another (Environment and Land Case Civil Suit 132 of 2013) [2022] KEELC 3033 (KLR)

Environment and Land Court
15 June 2022
1,807 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause an eviction judgment because the applicant waited five years and had already vacated the land, so there was nothing left to stay.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) determined the Plaintiff/Applicant's notice of motion dated 14th October 2021 seeking stay of execution of the final judgment in this suit (an eviction order over land parcel Lamu/Lake Kenyatta 11/474, delivered by Angote J in May 2017), pending her application for leave to appeal out of time in Mombasa Court of Appeal Civil Application No. E040 of 2021, and a stay of criminal proceedings in Criminal Case No. 270 of 2020 at Mpeketoni where she faces charges of forcible detainer, malicious damage to property and illegal grazing. The 1st Respondent opposed the application, deponing that the applicant had vacated the suit property, that there was therefore nothing to stay, and that the application was brought after inordinate delay. The applicant's former advocate, Tonia Mwania, swore a replying affidavit confirming she refunded the retainer for lack of instructions. The court held that the stay applications were dependent on leave to appeal out of time; that the delay of over five years since the judgment of 12th May 2017 was inordinate and unexplained; that blaming one's advocate cannot excuse a litigant who fails to follow up her case; and that the eviction had already been effected, leaving nothing to stay. Relying on Teresiah Wairimu v Wanjiku Mwangi, Grace Wanja Njuguna v Andrew Kingori and Bi-Mach Engineers Ltd v James Kahoro Mwangi, the court dismissed the application with costs to the Respondent on 15th June 2022.

Key legal issues

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01

Whether the stay of execution application satisfied the requirement of being brought without unreasonable delay

Holding

The application was filed more than five years after the judgment and the delay was not sufficiently explained; blaming the former advocate does not excuse the applicant's failure to follow up her case.

Reasoning

The judgment was delivered on 12th May 2017 and the application was filed in October 2021. The applicant blamed her former advocate, but that advocate refunded the retainer for lack of instructions, after which the applicant still did not move swiftly to seek leave to appeal out of time. A litigant must take charge of her case. The delay was therefore inordinate and unexplained.

p. 3
02

Whether there was anything capable of being stayed

Holding

No - the applicant had already vacated the suit property and the eviction ordered by the judgment had been overtaken by events, so a stay would serve no useful purpose.

Reasoning

The 1st Respondent deponed that the plaintiff vacated the suit property upon delivery of judgment and the respondent took possession. The court relied on authority that a stay overtaken by events cannot be granted as it would serve no useful purpose. Since the intended appeal itself did not exist, no decree process remained to stay.

p. 3

Legal principles established

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  • A litigant has a duty to follow up his matter with his advocates; blaming an advocate for failure to lodge an appeal does not excuse the client's indolence
  • A stay of execution cannot be granted where the events it seeks to prevent have already occurred

Court orders

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  1. 1.The application dated 14th October 2021 is dismissed
  2. 2.Costs of the application to the Respondent
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (inherent jurisdiction of the trial court over stay of execution and proceedings in its own suit)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kamau v Nyokabi & another (Environment and Land Case Civil Suit 132 of 2013) [2022] KEELC 3033 (KLR)", Case Analysis (2022). Not stated in judgment (application dated 14th October, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3033/eng@2022-06-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.